From Casetext: Smarter Legal Research

Hutnik v. Brodsky

Appellate Division of the Supreme Court of New York, First Department
Oct 25, 1962
17 A.D.2d 808 (N.Y. App. Div. 1962)

Opinion

October 25, 1962


Order, entered on May 2, 1962, denying motion by defendant to dismiss the action for failure to prosecute, unanimously reversed on the law and on the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and the motion granted, with $10 costs. The plaintiff has failed to present a satisfactory excuse to justify the delay of 22 months in prosecuting this action. The reason presented for the delay was that the plaintiff was waiting for the defendant to keep a promise to arrange for plaintiff's physical examination. But the responsibility for the diligent prosecution of an action rests with the plaintiff. Here, the plaintiff had adequate remedies under the Rule for Exchange of Medical Information. He could have effected prompt service of a notice fixing a time and place for the medical examination by the defendant, and, upon defendant's failure to respond to such notice, could have proceeded to serve and file a note of issue. (New York County Supreme Court Trial Term Rules, rule XII, subds. 1, 6.)

Concur — Botein, P.J., Breitel, Valente, McNally and Eager, JJ.


Summaries of

Hutnik v. Brodsky

Appellate Division of the Supreme Court of New York, First Department
Oct 25, 1962
17 A.D.2d 808 (N.Y. App. Div. 1962)
Case details for

Hutnik v. Brodsky

Case Details

Full title:JOHN HUTNIK, Respondent, v. IRVING BRODSKY, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 25, 1962

Citations

17 A.D.2d 808 (N.Y. App. Div. 1962)

Citing Cases

Sortino v. Fisher

It is not in the nature of most defenses or defendants for defendants to press for prosecution. The duty of…

Sedito v. Moskow

When the notices pursuant to CPLR 3216 were served, nearly five years had elapsed since joinder of issue and…